J-A01011-17

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

E.A.M. IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

A.M.D. III

 Appellant No. 515 WDA 2016

Appeal from the Order Entered March 10, 2016

In the Court of Common Pleas of Butler County

Civil Division at No(s): MSD 16-40020

BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 27, 2017

A.M.D. III appeals from the March 10, 2016 final protection order 

entered pursuant to the Protection of Victims of Sexual Violence or 

Intimidation Act (“PVSVIA”), 42 Pa.C.S. §§ 62A01-62A20. The petition was 

filed by E.A.M. (“Petitioner”) on behalf of her minor daughter, M.M.1 We 

affirm. 

On April 1, 2015, Appellant, then age seventeen, and M.M., age 

sixteen, had a sexual encounter outside of M.M.’s automobile while returning 

from a youth meeting at First Baptist Christian School in Butler, 

Pennsylvania. The parties dispute whether the encounter was consensual. 

M.M. described the episode as follows. During the trip home, Appellant 

____________________________________________

1

In order to protect the identity of the minor victim, we redacted the names 

of the parties and altered the caption accordingly. 
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directed her to detour onto a country road, pull the car to the berm, turn off 

the engine, and exit the vehicle. Once M.M. was out of the car, Appellant 

instructed her to get on her knees and perform fellatio. The ordeal lasted 

approximately thirty minutes, and ended when Appellant ejaculated in 

M.M.’s mouth. Thereafter, the pair returned to the vehicle, where Appellant 

placed his hand on top of M.M.’s and directed M.M. to rub his penis while he 

kissed her breasts. 

On April 23, 2015, M.M. reported the incident to the Pennsylvania 

State Police, who, following an investigation, filed a juvenile delinquency 

petition alleging that Appellant’s role in the encounter was conduct that 

would constitute indecent assault if performed by an adult.2 Following the 

ensuing adjudicatory hearing, the juvenile court found that Appellant did not 

commit the delinquent act alleged in the petition, and it dismissed the 

petition. Specifically, as it relates to the primary issue in this appeal, the 

juvenile court subsequently explained that its “finding was based upon the 

fact that [it] found that sex had happened between the parties, that it was 

without the consent of the victim, but that [the lack of] consent had not 

been sufficiently communicated for [it] to find [Appellant] guilty beyond a 

reasonable doubt.” N.T., 3/10/16, at 27. 

____________________________________________

2

 The relevant subsection of indecent assault applies where a person causes 

the complainant to have indecent contact with him or her without the 

complainant's consent. 18 Pa.C.S. § 3126(a)(1). 
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On January 27, 2016, Petitioner filed a petition on her daughter’s 

behalf pursuant to the PVSVIA. The petition alleged that Appellant, who is 

no longer enrolled at First Baptist Christian School, appears at school events, 

stares at M.M., and tries to speak with her. Although M.M. informed school 

administrators that Appellant’s presence at school activities made her feel 

unsafe, the administration declined to address the situation because 

Appellant’s mother taught at the school. Instead, they continued to endorse 

Appellant’s presence. 

The trial court granted a temporary protection order, and on March 10, 

2016, following a continuance and an evidentiary hearing, the court entered 

a final protection order prohibiting Appellant from engaging in any form of 

contact with M.M. for three years. This timely appeal followed.3 Appellant 

complied with the trial court’s order directing him to file a concise statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial 

court’s ensuing Rule 1925(a) opinion relied upon the underlying order and 

the certified record.4

____________________________________________

3 As the last day of the appeal period fell on Saturday, April 9, 2016, 

Appellant had until the first business day to file the appeal. See 1 Pa.C.S. § 

1908 (“Computation of time”). 

4 We disapprove of the trial court’s reliance upon its underlying order in lieu 

of a developed trial court opinion that addressed all five of the issues that 

Appellant asserted in his statement of errors complained of on appeal. While 

Pa.R.A.P. 1925(a) alleviates the need for a trial court opinion when the 

(Footnote Continued Next Page)
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Appellant presents three claims for our review: 

1. The [trial] [c]ourt erred in entering a final [p]rotection [o]rder 

by reason that [M.M.] did not meet the burden provided in 

Section 42 Pa.C.S.A. § 62A06, and [the] court applied the wrong 

standard of proof.

2. The [trial] [c]ourt erred in entering the [p]rotection [o]rder 

in that there was neither evidence set forth by [M.M] proving 

that she was at a continued risk of harm by [Appellant] nor 

evidence of any harm suffered by her.

3. The [trial] [c]ourt failed to consider actions of the alleged 

victim following the imposition of the [p]rotection [o]rder, i.e., 

trying to “friend” [Appellant’s] mother on Facebook, which shows 

by [M.M.’s] own action that a [p]rotection [o]rder was being 

pursued in bad faith. 

Appellant’s brief at 4. 

At the outset, we observe that Appellant’s third issue is waived 

because it was not raised before the trial court. See Pa.R.A.P. 302(a) 

(“Issues not raised in the lower court are waived and cannot be raised for 

the first time on appeal.”). This claim is predicated upon M.M.’s alleged 

post-hearing attempt to communicate with Appellant’s mother on social 

media. However, Appellant did not level this claim in a motion for 

reconsideration or any other petition for relief. Even accepting Appellant’s 

statements that he notified the trial court of the issue in a letter mailed to 

(Footnote Continued) _______________________

reasons for the order appear of record, that is not this case. Instantly, by 

relying upon its underlying order, the trial court failed to address Appellant’s 

specific allegations of error. If we permitted judges to do routinely what the 

trial court did here, it would render Rule 1925 meaningless. 
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the court and opposing counsel, that correspondence is not included in the 

certified record and therefore does not exist for purposes of appellate 

review. Commonwealth v. Boyd, 679 A.2d 1284, 1290 (Pa.Super. 1996) 

(“It is black letter law in this jurisdiction that an appellate court cannot 

consider anything which is not a part of the record in the case.”). Moreover, 

while Appellant included the claim in his Rule 1925(b) statement, that action 

does not cure the failure to raise the issue before the trial court. See 

Steiner v. Markel, 968 A.2d 1253, 1257 (Pa. 2009). Thus, the issue is 

waived. 

Appellant’s remaining issues assail the trial court’s application of the 

PVSVIA, which relates “to protection of victims of sexual violence or 

intimidation” regardless of a preexisting relationship. Herein, we employ the 

identical standard of review that we use to review the propriety of an order 

entered pursuant to the Act’s seasoned counterpart addressing the 

protection of victims of physical or sexual abuse by family members, i.e., the 

Protection From Abuse Act (“PFA”), 23 Pa.C.S. §§ 6101-6122. See e.g., 42 

Pa.C.S. § 62A04(c) (PVSVIA proviso requiring Pennsylvania State Police to 

record and index valid orders in database pursuant to PFA); and § 62A18 

(extending applicability of non-disclosure provisions relating to PFA). Our 

standard of review of protection orders is well ensconced: “We review the 

propriety of a PFA order for an abuse of discretion or an error of law.” 

Ferko–Fox v. Fox, 68 A.3d 917, 920 (Pa.Super. 2013). We have described 
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this standard as “not merely an error of judgment, but if in reaching a 

conclusion the law is overridden or misapplied, or the judgment exercised is 

manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, 

as shown by the evidence or the record, discretion is abused.” Depp v. 

Holland, 636 A.2d 204, 205–06 (Pa.Super. 1994) (citation omitted). 

Appellant’s first contention is that the trial court erred in failing to 

require Petitioner to prove beyond a reasonable doubt that M.M. was the 

victim of sexual violence.5 N.T., 3/10/16, at 27. The following statutory 

definitions are relevant to our review:

“Sexual violence.” Conduct constituting a crime under 

any of the following provisions between persons who are not 

family or household members:

18 Pa.C.S. Ch. 31 (relating to sexual offenses) [e.g., § 

3126 (Indecent Assault)] [.]

. . . .

“Victim.” A person who is the victim of sexual violence or 

intimidation.

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5 At the close of the hearing, the trial court misstated that it found M.M. a 

victim of “sexual intimidation” as opposed to sexual violence. N.T., 3/10/16, 

at 28. While the court apparently muddled the separate statutory definitions 

of “sexual violence” and “intimidation”, the court’s misstatement is harmless 

because the final PVSVIA order confirms the trial court’s finding “that M.[M.] 

. . . is a victim of sexual violence . . . committed by [A.M.D. III].” PVSVIA 

Order, 3/10/16, at 2. 
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42 Pa.C.S. § 62A03. Similarly, “intimidation” is defined as harassment 

pursuant to 18 Pa.C.S. § 2709 (a)(4), (5), (6) or (7) or stalking pursuant 18 

Pa.C.S. § 2709.1, when an adult directs either behavior toward a minor. 

Id.

6

Appellant’s argument is predicated upon the portion of the definition of 

“sexual violence” that references “[c]onduct constituting a crime.” He 

extrapolates from that phraseology the requirement that a tribunal must 

have adjudged the respondent guilty of one of the underlying offenses in 

order for the petitioner to qualify as a victim. Specifically, Appellant reasons 

that, since the statutory definition of “sexual violence” relates to “Conduct 

constituting a crime under” one of the enumerated provisions of the 

Pennsylvania Crimes Code and the juvenile court declined to adjudicate him 

delinquent of indecent assault based upon the April 2015 episode, his 

conduct did not constitute a crime. See 42 Pa.C.S § 62A03. He therefore 

concludes that M.M. is necessarily excluded from the statutory definition of 

“victim,” i.e., “a person who is the victim of sexual violence or intimidation.” 

Id. Stated another way, Appellant asserts, “In that the conduct recited 

____________________________________________

6 Consistent with the foregoing definitions, the PVSVIA provides two distinct 

types of protection orders: 1) an order protecting victims, regardless of age, 

of sexual violence; and 2) an order protecting a minor from intimidation by 

an adult over eighteen years old. Instantly, Petitioner does not assert that 

M.M. was a victim of intimidation by an adult. Hence, that form of 

protection is not implicated herein.
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must ‘constitute a crime[,]’ proof beyond a reasonable doubt of every fact 

necessary to constitute the crime . . . must be established, [and Petitioner] 

did not meet this burden[.]” Appellant’s brief at 11. We disagree.

In the construction of statutes, we construe words and phrases 

according to their common usage. 1 Pa.C.S. § 1903(a) (“Words and phrases 

shall be construed according to rules of grammar and according to their 

common and approved usage[.]”). Appellant’s statement of the law is 

accurate insofar as the PVSVIA defines a victim as “A person who is the 

victim of sexual violence or intimidation” and “sexual violence” is described 

as “conduct constituting a crime under any of the [enumerated sexual 

assault and protection-of-minor] provisions between persons who are not 

family and household members.” 42 Pa.C.S. § 62A03. Appellant’s argument 

would be persuasive if the statutory analysis was restricted to a review of 

the definition of “sexual violence.” However, as explained infra, his 

argument that the PVSVIA requires a finding of proof beyond a reasonable 

doubt, is untenable in light of the statutory framework as a whole. Thus, we 

reject Appellant’s premise that a criminal conviction or other finding of proof 

beyond a reasonable doubt is a prerequisite to a successful PVSVIA claim.

The purpose of the PVSVIA is to provide victims of sexual violence 

safety and protection separate from criminal prosecution. See 42 Pa.C.S. 
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§§ 62A01 and 62A02(5) and (6).7 While Appellant accurately highlights that 

the statutory definition of sexual violence refers to “conduct constituting a 

____________________________________________

7

 Specifically, the Act’s preliminary recitals provide:

§ 62A01. Scope of chapter

This chapter relates to protection of victims of sexual 

violence or intimidation.

. . . .

§ 62A02. Findings and purpose

The General Assembly finds and declares that:

(1) Sexual violence is the most heinous crime against a person 

other than murder.

(2) Sexual violence and intimidation can inflict humiliation, 

degradation and terror on the victim.

(3) According to the Department of Justice, someone is 

sexually assaulted every two minutes in the United States.

(4) Rape is recognized as one of the most underreported 

crimes, and studies indicate that only one in three rapes is 

reported to law enforcement.

(5) Victims of sexual violence and intimidation desire safety 

and protection from future interactions with their offender, 

regardless of whether they seek criminal prosecution.

(6) This chapter provides the victim with a civil remedy

requiring the offender to stay away from the victim, as well as 

other appropriate relief.

42 Pa.C.S. § 62A02 (emphasis added).
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crime,” the emphasis of that definition is upon the nature of behavior and 

not, as Appellant argues, the burden of proof imputed from criminal law. 

Inasmuch as criminal conduct occurs independent of the state’s decision to 

prosecute or the fact-finder’s verdict, the statutory framework neither 

anticipates nor requires criminal prosecution or a finding of proof beyond a 

reasonable doubt.8 The General Assembly acknowledged this reality in the 

“Findings and purpose” section of the statute by declaring, inter alia, “Rape 

is recognized as one of the most underreported crimes, and studies indicate 

that only one in three rapes is reported to law enforcement,” 42 Pa.C.S. § 

62A02 (4), and the “Victims of sexual violence and intimidation desire safety 

and protection from future interactions with their offender, regardless of 

whether they seek criminal prosecution.” 42 Pa.C.S at § 62A02 (5) 

(emphasis added). As our legislature did not envision the criminal 

prosecution of all alleged perpetrators of sexual violence, it would be foolish 

to fashion an impediment to civil relief under the PVSVIA that requires 

victims to prove the elements of the underlying behavior beyond a 

reasonable doubt. 

____________________________________________

8 Undeniably, where an assailant is prosecuted and convicted of a sexual 

offense, the criminal justice system has inherent protections that are not 

available to victims whose assailants elude prosecution. Indeed, the civil 

remedy of a protection order pursuant to the PVSVIA is entirely superfluous 

in criminal cases because district attorneys universally request, and courts 

routinely impose, no-contact orders as conditions of sentence or probation 

following convictions of crimes against the person. 
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This Court rejected a similar argument concerning the injection of 

criminal culpability into protection-from-abuse actions brought in civil court. 

In Boykin v. Brown, 868 A.2d 1264, 1266 (Pa.Super. 2005), a woman filed 

a PFA against her son’s father alleging that he raped her while she was at his 

house for a custody exchange. Pursuant to § 6107 of the PFA, the plaintiff 

was required to prove, by a preponderance of the evidence, an allegation of 

abuse, which is defined, in pertinent part, as “[t]he occurrence of one or 

more [enumerated] acts between family or household members, sexual or 

intimate partners or persons who share biological parenthood.” 

Significantly, like the definition of sexual violence outlined in the PVSVIA, the 

PFA definition of abuse references conduct that aligns with criminal offenses, 

i.e., simple assault, aggravated assault, “rape, involuntary deviate sexual 

intercourse, sexual assault, statutory sexual assault, aggravated indecent 

assault, indecent assault[,] incest[,]” false imprisonment, child abuse, and 

stalking. See § 23 Pa.C.S. § 6102 (a)(1)-(5).

During the PFA hearing, the father testified that the plaintiff had been 

at his home for five hours on the day the incident occurred and that the 

sexual encounter was consensual. The trial court held its ruling on the PFA 

petition in abeyance until the investigating authority determined whether or 

not it would pursue criminal charges against the father. After the District 

Attorney’s Office subsequently informed the PFA court that it had declined to 

prosecute the father, the court dismissed the PFA petition. 
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In reversing the PFA court, we reasoned that, the PFA Act did not seek 

to determine criminal culpability and that the PFA court erred in relying upon 

the lack of prosecution as its basis to dismiss the petition rather than 

evaluating the alleged victim’s evidence of abuse. See also Snyder v. 

Snyder, 629 A.2d 977, 982-83 (Pa.Super. 1993) (“[T]he Protection from 

Abuse Act does not seek to determine criminal culpability.”). In sum, we 

concluded, “a determination by a District Attorney or the police as to 

whether to file criminal charges against a defendant in a PFA proceeding is 

not relevant to the PFA court's decision”). Id at 1266. 

The same rationale applies herein. In both the PFA and the PVSVIA, 

the General Assembly referenced specific criminal offenses as a shorthand 

method of identifying behaviors that are subsumed by the respective 

statutory definitions of abuse and sexual violence. Accordingly, for the same 

reasons the Boykin Court criticized the PFA court for tying its PFA 

determination to the District Attorney’s office decision to prosecute the 

underlying rape, we reject Appellant’s contention that Petitioner was 

required to prove the underlying indecent assault beyond a reasonable doubt 

in order to establish sexual violence. Stated plainly, the notion that the 

definition of sexual violence requires, as a predicate to relief pursuant to the 

PVSVIA, the identical evidentiary standard needed to sustain a criminal 

conviction is untenable.
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In addition, Petitioner was not required to prove by any formal 

standard that M.M. was a victim of sexual violence. Quite the contrary, the 

mere assertion that M.M. was a victim of sexual violence was sufficient to 

satisfy the initial evidentiary threshold as long as the trial court found it to 

be credible. Pursuant to § 62A06 (a)(1) and (2), in order to prevail on a 

PVSVIA claim and to achieve the desired result of a final no-contact order, a 

petitioner must “(1) assert that the plaintiff or another individual, as 

appropriate, is a victim of sexual violence or intimidation committed by the 

defendant; and (2) prove by preponderance of the evidence that the 

plaintiff or another individual, as appropriate, is at a continued risk of harm 

from the defendant.” 42 Pa.C.S. § 62A06 (a)(1) and (2) (emphases added). 

Instantly, the Petitioner asserted that M.M. was the victim of sexual violence 

in relation to the April 2015 episode, and during the ensuing evidentiary 

hearing, she presented evidence regarding the encounter and the presence 

of a continued risk of harm posed by Appellant, i.e., the psychological harm 

of Appellant’s persistent presence at M.M.’s school even though he is not 

enrolled at that institution. As the PVSVIA requires only that a petitioner 

assert that he or she is a victim of sexual violence, which Petitioner did 

herein and the trial court accepted as credible, we reject Appellant’s 

contention that the trial court applied the wrong standard of proof as to the 

initial prong of § 62A06(a).
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Moreover, to the extent that Appellant challenges the trial court’s 

finding that M.M. was, in fact, the victim of sexual violence, no relief is due. 

As noted supra, the trial court determined that M.M. did not consent to the 

April 2015 sexual encounter. It further explained that, as the court 

presiding over the juvenile delinquency proceeding, it declined to adjudicate 

Appellant delinquent because it was not clear whether the lack of consent 

was sufficiently communicated to warrant criminal culpability for indecent 

assault beyond a reasonable doubt. N.T., 3/10/16, at 27. However, in 

presiding over the PVSVIA petition, the same jurist determined that 

Appellant’s behavior on the April 2015 night was tantamount to sexual 

violence under the PVSVIA insofar as M.M. did not agree to Appellant’s 

sexual advances. Id. As the certified record supports the trial court’s 

determination as to the alleged criminal conduct, we do not disturb its 

finding of sexual violence as defined in the PVSVIA. See Pa.R.C.P. 1957 

(“The decision of the court may consist of only general findings of sexual 

violence and/or intimidation[.]”).

Finally, we address Appellant’s argument that the trial court erred in 

finding that the Petitioner established a continued risk of harm by a 

preponderance of the evidence. He complains that the evidence that 

Petitioner presented regarding Appellant’s repeated presence at school 

activities did not demonstrate harm. Again, we disagree.
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The preponderance of the evidence standard of proof is the least 

demanding of the three standards of proof typically used in Pennsylvania 

jurisprudence. Commonwealth v. Batts, 163 A.3d 410, 453 (Pa. 2017). 

It is “a more likely than not inquiry, supported by the greater weight of the 

evidence; something a reasonable person would accept as sufficient to 

support a decision.” Id. (citations omitted). 

During the hearing, M.M. testified that Appellant appeared at two 

school-sponsored events where she was a cheerleader and that he received 

authorization from the school to shadow a former teacher during academic 

hours. N.T., 3/10/16, at 5, 6. First, on January 22, 2016, Appellant 

attended a breast-cancer awareness event to recognize teachers, including 

his mother, who were fighting breast cancer. Id. at 5, 8, 12. Appellant 

posed near M.M. in a group photograph that included approximately sixty 

people. Id. at 10. M.M. testified that Appellant initially stood right behind 

her. Id. at 10, 15. He moved a couple of paces away after his father took 

the space immediately next to her. Id. at 12. Although Appellant did not 

speak to M.M. or make any sexual advances toward her, he bumped into her 

during the event while she was walking with a friend, and at another point, 

she thought he was going to to address her. Id. at 9, 12. M.M. testified that 

she was afraid that Appellant was going to attempt to talk to her, approach 

her, or contact her physically. Id. at 6. 
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Four days later, Appellant accompanied an exchange student to a 

basketball game that was scheduled at the high school. Id. at 6, 13. The 

student was playing in the game, but Appellant had never come to observe 

him prior to that night. Id. at 17. While Appellant approached M.M., who 

was with other cheerleaders, near the concession stand, he did not attempt 

to speak or touch her. Id. at 15, 17. However, he did not order food. Id. 

at 17. As M.M. explained, “He was just trying to talk and stand there. . . . 

[H]e wasn’t . . . doing anything, like ordering food or anything.” Id. at 17. 

Nevertheless, Appellant’s presence made her nervous and uncomfortable. 

Id. “He came close . . . enough that [she] was scared.” Id. at 13. M.M. 

testified that she was frightened when she observed him on the night of the 

basketball game, and indicated that two months later, she is still afraid of 

potential contact with Appellant. Id. at 6. Specifically, M.M. worries that 

her safety would be in danger if Appellant were permitted to return to First 

Baptist Christian School, which she believes the school would endorse if her 

PVSVIA petition was denied. Id. at 7, 16. 

The certified record validates M.M.’s concerns about the school’s 

apathy. In fact, as noted supra, immediately before Petitioner filed the 

instant petition, school administrators accommodated Appellant’s request to 

attend the school for no other reason than to shadow his previous science 

teacher and associate with former classmates. Id. at 24, 26. M.M. further 

expounded that, when she told an administrator of her apprehension about 
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Appellant’s presence, he told her that “the school had no problem with 

[Appellant] coming back and visiting” and that “if [Appellant] wanted to, he 

could come back a couple more times.” Id. at 16. 

The foregoing evidence sustains the trial court’s finding by a 

preponderance of the evidence that Appellant’s recurrent presence at First 

Baptist Christian School has placed M.M. at continued risk of harm by 

causing “mental or emotional harm or damage[.]” PVSVIA Order, 3/10/16, 

at 2. Appellant complains that the court’s finding of harm is specious in light 

of the fact that he did not interact with M.M. at the two events that he 

attended. However, this argument ignores the fact that his presence at the 

school, and the administration’s decision to endorse it, are the two causes of 

apprehension, fear, and emotional distress which shape the harm M.M. 

seeks to quell with the final PVSVIA order. 

While Appellant argues that the PVSVIA is not intended to provide 

protection to individuals who merely had a sexual encounter from seeing 

each other in social settings, he does not accurately characterize this case. 

Appellant’s extraordinarily cavalier perspective of the April 2015 ordeal 

disregards the trial court’s specific finding of sexual violence. Contrary to 

Appellant’s representations, it was not simply a casual sexual encounter 

between two consenting people. More importantly, Appellant’s contention 

that the Act’s protections do not extend to M.M. discounts the reality that, as 

a victim of sexual violence, M.M.’s fear of harm and her desire to avoid 
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future contact with Appellant is paramount. Indeed, protecting victims of 

sexual abuse from future interaction with their assailants is the precise 

purpose of the statute. See 42 Pa.C.S. § 62A02 (Findings and purpose) 

(5) (“Victims of sexual violence and intimidation desire safety and protection 

from future interactions with their offender, regardless of whether they seek 

criminal prosecution.”); 42 Pa.C.S. § 62A02 (6) (“This chapter provides the 

victim with a civil remedy requiring the offender to stay away from the 

victim, as well as other appropriate relief.”). No relief is due.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/27/2017